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Commentary: Laws vary on whether recording is allowed

With the advent of pocket-sized recorders, sophisticated cell phones, and other covert recording devices, a growing number of employees — whether disgruntled or not — are secretly recording conversations in and outside the workplace in the hope of catching their employers “in the act.” After all, secret recordings have paid off in the past. You may recall the disgruntled Texaco employee whose secretly recorded conversation of executives making what appeared to be racist comments resulted in a then-record $176 million settlement in a race discrimination suit.

Suppose you learn that one of your employees has or may be surreptitiously recording conversations with management. Can the employee legally do this? And if so, what options do you have as an employer to prevent or thwart such activity? Does it matter whether the recording takes place outside the workplace or in a public setting, as opposed to in the workplace during a closed-door meeting between the employee and his or her supervisor? The answer may depend on your state.

Both federal and state laws place restrictions on wiretapping and eavesdropping. These laws generally apply to situations where one party listens in on the conversations of others without their knowledge and have been used to regulate electronic recordings of both telephone conversations and in-person interviews or meetings.

As a general matter, the ability to secretly record a conversation initially turns on whether or not a reasonable expectation of privacy can be attached to the conversation. If there is no expectation of privacy to the conversation, any party to the communication (and in some cases any non-party) is generally free to hit the record button.

Twelve states — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington — generally prohibit individuals from recording conversations unless all parties to the communication consent to the recording. These states are typically referred to as “all-party consent” or “two-party consent” states.

The remaining thirty-eight states (including Wisconsin), along with the District of Columbia, are considered “one-party consent” states. In these states, individuals may legally record a conversation to which they are a party so long as one of the parties to the communication consents to the recording. Because the consenting party in these states can also be the individual doing the recording, the conversation may be — and often is — recorded without the knowledge or consent of any other party. This is also the rule under federal law.

So what does this mean for employers? In the minority of states that require all parties to a communication to consent to its recording, it means (at least in theory) very little, as employers need not worry about a conversation being secretly recorded unless the conversation takes place in public or in a manner in which the parties have no reasonable expectation of privacy. While individuals can certainly still record conversations in these jurisdictions in willful violation of the law and then attempt to blackmail or embarrass their employers by making the recordings public, most states have stiff civil and criminal penalties for such devious acts.

In “one-party consent” states such as Wisconsin, on the other hand, employers have much more to worry about, as just about any conversation can be legally recorded without their knowledge. To combat this, many employers have policies that expressly forbid clandestine recordings. For the most part, these policies are a permissible and effective way to deter employees from recording conversations without their employer’s knowledge. They can also serve as legitimate non-discriminatory grounds for discharging employees who violate the policy.

Does this dynamic change, though, if the employee claims that the recording was done in order to document or investigate discrimination or harassment? Does the recording then become a protected activity? While according to the EEOC, the answer generally is yes, courts are split over the issue. Anti-retaliation laws prohibit employers from retaliating against employees because of the employee’s opposition to or participation in an investigation of discriminatory conduct. Some courts, like the Second Circuit, have held that making a secret recording to collect evidence of discrimination is a protected activity and that employers, as a matter of law, cannot take action against employees for making those recordings. See Heller v. Champion Int’l Corp., 891 F.2d 432, 436-437 (2nd Cir. 1989). Other courts, such as the Seventh Circuit, have held that employers can take disciplinary action against employees for secretly recording conversations even if the recording was done under the guise of collecting information for a discrimination suit. See Argyropoulos v. City of Alton, 539 F.3d 724, 733-734 (7th Cir. 2008) (“Although Title VII indubitably protects an employee who complains of discrimination . . . the statute does not grant the aggrieved employee a license to engage in dubious self-help tactics or workplace espionage in order to gather evidence of discrimination.”)

Regardless of whether secret recordings are legal under state or federal law or qualify as a “protected activity” under anti-retaliation laws, employers are well-served by training managers and other decision makers to be careful in their conversations with other employees, especially those employees who may be on the verge of losing their job, are disgruntled, or are otherwise suspicious of the company. Should an employer discover that an employee is making secret recordings, it should contact legal counsel. Secret recordings typically do not “fly solo,” as they almost always accompany other legal issues that an employer is facing or will soon face.

Warren Buliox is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at warren_buliox@gshllp.com.


  1. Once of the most concise and well-explained discussions on the matter that I have read – and this is a topic I not only follow, but speak on myself. Thanks!

  2. The following statement in this article is, in my opinion, misleadingly broad:

    In Wisconsin…”individuals may legally record a conversation to which they are a party so long as one of the parties to the communication consents to the recording.”

    Under Wis.Stat. 968.31(2)(c) such recordings may indeed be felonious if they are made for a “tortious” or “other injurious act.” That covers a lot of ground that might well apply to any number of one-party recordings.

  3. Wisconsin law question:
    Is audio/visual recording legal in a public place of business, let’s say a business that boards animals, to determine if fraudulent or misconduct by the owners is taking place. Misconduct or fraudulent activities that may be happening illegally and would possibly cause it’s customers financial or scandalous troubles?

  4. In Maryland, would I have the right to record another party’s actions if we did not communicate to protect myself?

  5. I wanted to let you know that Oregon is also a two party state. ORS 165.540. Thank you.

  6. Is the recording laws based on the State of residence or based on the State in which the recording took place? For example, Is it legal for Tommy from California (2 party consent state) and works for a Company based out of California to record without consent at an offsite meeting in Tennessee (one party consent state)?

    Thank you.

  7. I’m not a lawyer but this is my opinion and some facts from what I could gather from reading the laws. The recording laws is based depending on both states and to which party is recording. For example, If you record from Texas, a company or individual in California, then You have to abide by the two-party-consent laws that California has. This means both or all parties must consent to being recorded; but if you switch that around and you are calling from California. Recording a company or individual in Texas, you would obviously abide by both your state and Texas recording laws. Since Texas is a one-party-state for recording which means, it only requires yourself or the other person to consent to the recording. This makes it legal in Texas to record if you yourself consent to the recording but illegal in California. If this is the case, better to be safe then sorry and follow California law since you live there or calling from there. Another thing when a company states, “that the call is being recorded or (may) be recorded,” This obviously means that the customer service provided has agreed to the recording of the call. So if your in California, then obviously it’s legal for you to record as long as you and all others consent to a recorded call. Since customer service has already consented to a recorded call then once you consent it is logical to assume that you can record the call for your protection as well. It’s logical to assume that both recordings if you record and the company are for personal protection purposes as long as they are not used for criminal action. Hopefully i am correct about mostly all of this but one thing is for sure, someday, there will be a court case on the subject about customer service recording calls and customers as well because that companies wont allow you to record them but they can record. That doesn’t seem lawful.

  8. If the company is recording you, does that give you the right to record them

    companies have hidden cameras everywhere, especially the office where they give employee write-ups,

  9. Can my employer have recording devices in our office on our phone’s at work. And can a coworker secretly record our conversation in the office without my consent in the state of Texas

  10. In texas our boss has the office bugged n cell phone . He didn’t let us know but we found out because he always ask about things we discuss without him being present. Is this legal ? We are embarrassed because we talk personal matters n this is also being recorded is thus legal ?

  11. If the caller is from a Two party state he has to follow those law if he’s the recorder but if the recorder is from a single party state he follows his state law as long as he’s in that state. Also the fact that a recording can still ne felonious is if the recorder were to use it to blackmail a person or an employer.

  12. Actually, it’s not necessarily true that Oregon is a 2-party state. In regards to telephone conversations, it is definitively a 1-party state. As long as you are a party to the conversation, you can record it without telling the other person… that is, if the other person is also in Oregon or in another 1-party state. It’s in-person conversations that MAY be 2-party… there are many exceptions to that… but either way, you only have to NOTIFY not get CONSENT. And you can always record a police officer, public hearings, classes, even private meetings, etc. without notification as long as you do it openly.

  13. I need to gather evidence of bad faith practices by my Heath plan, and the department of managed care in CA. Can I record my verbal correspondence with them without their consent?

  14. It’s so much better to gain consent of all parties because then, everybody’s “on the record” for what they say and it’s official… and legal.

  15. I secretly recorded my boss in the work place. I did this because I feel she is discriminating against me. She is Spanish and good worker, we just don’t get along and she is always on my case. The work place policy clearly states that recordings of any kind are prohibited in the workplace unless it was authorized by compliance. I didn’t know this and I told my HR department about the recording. Can they retaliate?

  16. Melanie_newborn@hotmail.com

    Can employer in Wisconsin record all calls that come into and out of switchboard, for employees to handle?

  17. Wisconsin happens to be a “one-party consent” state. My question relates to a private individual rights to retain a personal recording device in a business environment that he or she suspects is also being recorded by company security cameras. If that person believes a bias or prejudice in the workplace is taking place and is confronted by management, does that same individual retain the legal right to record for his or her own legal defense?
    For example, an individual asks his employer for a “reasonable accommodation” to be made due to a physical disability, however, fears retaliation with no such evidence to support otherwise. Legally, one may or may not be able to gather this information,so when it comes to a personal interest of protecting one’s rights, when is this considered legal or not legal?

  18. if a person is being recorded with a cell phone in a public space in Louisiana and does not give consent to the recorder who is from California, would this be considered a “two-party” consent. What rights does the person have who is being recorded with consent.

  19. If one person is talking to anothrr person about a personal matter of discrimination by another person, does the person being talked to have a legal right to record the conversation and give it to the dicriminative party?

  20. Is it legal to record secretively a conversation in wi. Concerned for & of retaliation in work place.

  21. I live in Wisconsin. Can I record an in person conversation with the DCFS caseworker assigned to my family without telling her? We are moving from family court to get a jury trial and need proof that DCFS/ CPS has been lying in court to attempt to strip parental rights and has knowingly slandered my fiance and myself so they can keep our daughter in fostercare.

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